Berry, Ex Parte Tom Wade

• Court: Court of Criminal Appeals of Texas
• Decided: January 10, 2007
• Docket: AP-75,585
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,585 EX PARTE TOM WADE BERRY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 922037-A IN THE 351ST DISTRICT COURT

FROM HARRIS COUNTY

Per curiam.

O P I N I O N

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of attempted capital murder and sentenced to forty-seven years' imprisonment. The First Court of Appeals affirmed his conviction. Berry v. State, No. 01-04-517-CR (Tex. App. - Houston [1^st], delivered June 23, 2005, no pet.).

Applicant contends that he was denied an opportunity to file a petition for discretionary review because his appellate counsel never received notice that Applicant's conviction had been affirmed. The trial court has entered findings of fact and conclusions of law that appellate counsel did not receive notice that Applicant's conviction had been affirmed. We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of the First Court of Appeals in Cause No. 01-04-517-CR that affirmed his conviction in Case No. 922037 from the 351st Judicial District Court of Harris County. Applicant shall file his petition for discretionary review with the First Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: January 10, 2007

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